Secretary of Labor Hilda Solis’s comments at the AFL-CIO annual meeting last week confirmed speculation that, with or without the resolution of health care legislation, President Obama will announce his recess appointment of Craig Becker to the National Labor Relations Board when Congress breaks for the Easter recess. While this effectively could preclude Becker from serving a normal five-year term, he would serve for about a year-and-a-half, enough time to have a profound impact on labor relations in this country.

In addition, some say the President also will appoint to the Labor Board union-lawyer Mark Pearce, who was previously nominated, and an as-yet-unnamed person (this would be in place of Bryan Hayes, the previous nominee for the currently vacant “Republican seat” on the Board). Some believe a recess appointment of Becker would be something the President can deliver to his labor supporters in advance of the upcoming mid-term elections.

Filling the Board’s vacancies with recess appointments now would give the Board time to achieve significant labor law reform through rulemaking without EFCA, which is unlikely to pass any time soon.  Under current law, the NLRB, without Congress, may implement significant change through administrative rulemaking. It did so when it issued rules on the appropriate bargaining unit for acute care hospitals, which significantly reduced delays in scheduling union elections within that industry.

Rulemaking could be used to streamline election procedures, expand voting “access” through electronic or absentee balloting and enhance special remedies and penalties for employer unfair labor practices in initial organizing and first contract situations. Along with traditional case-by-case decisionmaking and the development of internal agency policies, the Board could use rulemaking to realize some of the advantages unions sought, but have yet to achieve through EFCA.

There may be another reason for recess appointments. The U.S. Supreme Court has agreed to review a case on whether the current two-member Board had a sufficient quorum when it issued decisions over the past year-and-a-half. The District of Columbia Circuit Court of Appeals has ruled that it did not, though the majority of the other circuits have said otherwise. If the Supreme Court rules against the Board, it will nullify all of those decisions. Without an appropriate number of Board members, the current two-member Board cannot rectify the situation.  If the anticipated recess appointments materialize, a more labor-oriented Board would have the chance to re-consider and re-write those decisions.

Tags: Craig Becker, EFCA, National Labor Relations Board, NLRB
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Photo of Roger P. Gilson Jr. Roger P. Gilson Jr.

Roger Gilson is a Principal in the White Plains, New York office of Jackson Lewis P.C.  He received his Bachelor’s degree in Philosophy from Syracuse University in 1974 and a Master’s Degree in Public Administration from the Maxwell School at Syracuse University in…

Roger Gilson is a Principal in the White Plains, New York office of Jackson Lewis P.C.  He received his Bachelor’s degree in Philosophy from Syracuse University in 1974 and a Master’s Degree in Public Administration from the Maxwell School at Syracuse University in 1976.  In 1978, Mr. Gilson received his Doctor of Law, cum laude, from the Syracuse University College of Law, where he served as the Comments Editor of the Syracuse Law Review.  Mr. Gilson is a member of the Connecticut and New York Bars and is admitted to the U.S. District Court, Districts of Connecticut, Eastern New York and Southern New York.  He is also a member of the American Bar Association’s Committee on Law and Practice under the National Labor Relations Act.  Mr. Gilson practices in all areas of labor and employment law with particular emphasis on traditional labor law for health care employers.

He has extensive experience representing employers in labor cases before the National Labor Relations Board (NLRB), State Labor Boards and federal and state courts.  He has been involved in negotiating more than 100 collective bargaining agreements across the United States and is a recognized authority with respect to the handling and preempting strikes, picketing and corporate campaigns.  In 2001, as counsel to the Connecticut Association of Healthcare Facilities and the CAHCF Strike Task Force, he advised the industry in defeating the first and only state-wide nursing home strike.  He is also counsel to the Assisted Living Federation of America.  In 2006, the Labor Relations Institute, Inc. named Mr. Gilson as one of the “Top One Hundred Labor Attorneys in America” and Connecticut Magazine named him on its list of Connecticut Super Lawyers for 2006.

Mr. Gilson is a frequent speaker before business and employer associations, including the Business Council of New York, the Voluntary Hospitals of America (Human Resources Affinity Group), the American Health Care Association Executive Directors Committee, the New York State Health Facilities Association, and the Connecticut Association of Health Care Facilities.  He also has been on the faculty for Executive Enterprises’ seminars, “Corrective Bargaining” and “Strategies for Combating Strikes, Corporate Campaigns and other Union Pressure Tactics.”

Education

  • Syracuse University, 
J.D., 1978 
cum laude
  • Syracuse University,
 M.P.A., 1976
  • Syracuse University, 
B.A., 1974

Bar & Professional Association Memberships

  • American Bar Association
  • American Society of Healthcare Human Resources Administrators
  • Connecticut Hospital Association
Read more about Roger P. Gilson Jr.
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